the testimony is undisputed that, unlike the course pursued at street crossings, it was not customary here to give the signals alluded to upon approaching the bridge, and that Robbins' sudden turn from a place of safety to one of danger prevented giving either of such signals, and, as already stated, that the engi eer was satisfied that Robbins knew the engine was approaching; still further, Lang testified without dispute that Robbins did not look for the approaching engine after his turn toward the board walk, and that he (Lang) then "yelled at Mr. Robbins" twice. The trial judge stated the situation thus pointed out in considerable detail, instructing the jury under what circumstances recovery should be allowed or disallowed, and in the course of the charge stating: "Under the circumstances developed by the testimony introduced on this trial with respect to the use made by the public of the bridge where the accident complained of occurred, I charge you, then, the kind and degree of care which the engineer, Lang, was obliged in law to exercise to avoid injury to Robbins, was precisely the same degree and kind of care as that which Robbins himself was obliged in law to exercise in order to avoid suffering injury to himself."

To this plaintiff's counsel reserved exception and presented an assignment; but they make no contention here in respect of either. The court also instructed the jury that if it should be satisfied by a preponderance of the evidence that

** Engineer Lang did not exercise such care as men of ordinary care and prudence would ordinarily have exercised, if placed in his position, under the circumstances and conditions surrounding him just before and at the time of this accident, then he was negligent and the defendant company was negligent, and if this negligence contributed directly to cause the accident to decedent, then the plaintiff in this action would be entitled to recover, unless Robbins himself at the time of the accident was negligent in failing to exercise ordinary care for his own safety under the circumstances in which he was placed."

[3, 4] Considering the foregoing instructions in connection with the rest of the charge, we are convinced that the merits of plaintiff's case were fully and fairly explained to the jury under clearly stated and pertinent rules of law. The most that can be said of the applicable evidence is that it was open to the jury to find that both the railroad company, through Lang, and Robbins himself, were negligent, and that their negligence directly concurred in bringing about the injury. It results that no error was committed in refusing plaintiff's requests on the subject of last clear chance. There is no evidence tending to show that Lang had any reason to anticipate Robbins' sudden turn into the zone of danger or that thereafter the injury could have been avoided. On the contrary, Robbins' previous conduct warranted the engineer in believing that, in view of the knowledge Robbins had already shown of the approaching locomotive, he would await its passage instead of making the fatal turn, or at least that he would again look for the locomotive's approach and regulate his movements accordingly (Illinois Central R. Co. v. Ackerman, 144 Fed. 959, 961, 962, 76 C. C. A. 13 [C. C. A. 8]; St. L. & S. F. R. Co. v. Summers, 173 Fed. 358, 360, 97 C. C. A. 328 [C. C. A. 8]); and the testimony is positive that Robbins' turn and movement into danger occurred too late to enable the engineer to avoid the injury. The vice, then, of the requests was that

they would open the company to a charge of negligence, regardless of the showing of concurring negligence in the decedent. The doctrine of last clear chance takes account of the acts and omissions of both the person injured and the defendant, and applies only where the defendant has either actual notice or is fairly chargeable with notice of the peril of the person injured, and negligently fails to avoid the injury; but the rule never applies where the concurrent neglect of both directly contributes to the injury. Gilbert v. Erie R. Co., 97 Fed. 747, 752, 38 C. C. A. 408 (C. C. A. 6); Winters v. Balt. & O. R. Co., 177 Fed. 44, 49, 100 C. C. A. 462 (C. C. A. 6); Dickson v. Chattanooga Ry. & Light Co., 237 Fed. 352, 353, 150 C. C. A. 366, L. R. A. 1917C, 845 (C. C. A. 6); Chicago, M. & St. P. Ry. Co. v. Bennett, 181 Fed. 799, 801, 104 C. C. A. 309 (C. C. A. 8); Gilbert v. Burlington, C. R. & N. Ry. Co., 128 Fed. 529, 533, 63 C. C. A. 27 (C. C. A. 8); Atchison, T. & S. F. Ry. Co. v. Taylor, 196 Fed. 878, 880, 116 C. C. A. 440 (C. C. A. 8); Northern Pac. Ry. Co. v. Jones, 144 Fed. 47, 51, 75 C. C. A. 205 (C. C. A. 9); Drown v. Traction Co., 76 Ohio St. 234, 247, 81 N. E. 326, 10 L. R. A. (N. S.) 421, 118 Am. St. Rep. 844. And see Davies v. Mann, 10 M. & W. 545, 548, which is generally regarded as the "origin of the doctrine of 'last clear chance."" 55 L. R. A. 418, note. The real trouble with plaintiff's case is the difficulty of explaining decedent's action on reaching the platform; no explanation of this is given which is consistent with any right of recovery. Whether decedent then knew or was chargeable with knowing that the locomotive was approaching, was clearly the ultimate question of fact. This question was made prominent in the evidence and in the general charge, and must be regarded as concluded by the verdict.

[5, 6] 4. The assignment of error concerning exclusion of evidence offered to show that the place of collision was part of an ordinary highway seems to us to be immaterial. The evidence was undisputed that the public had for years been permitted to pass along the footpath before described, and that the decedent was quite as familiar with the dangers attending such passage as the company was itself. Whether the footpath thus used was or was not part of a highway, it is certain that no use had been made of the land as an ordinary highway or street for many years, and that no such use had ever been made of the railroad bridge. However, in view of the long and continued use proved to have been made of the footpath, the rights and obligations of the parties were no greater or no less than they would have been had the footpath admittedly formed part of an ordinary public highway. Northern Pacific Ry. Co. v. Jones, 144 Fed. 47, 49, 75 Č. C. A. 205, and citations (C. C. A. 9). And this in effect was the ruling below.

[7-9] 5. The last assignment relied on concerns the admission of testimony to the effect that the reason for omitting to sound the bell or whistle as a warning of the locomotive's approach was that the approach did not lead to a highway crossing. What is said in the last two paragraphs would seem sufficient to answer this objection. Further, however, the company was under no statutory duty to give this warning in approaching a bridge such as the one here involved. See section 12549, Ohio G. C. But even if the injury had occurred at a road crossing and

the railroad's failure to give the warning were treated as negligence, this would not have relieved Robbins from the necessity of taking ordinary precautions for his own safety. Schofield v. Chicago & St. Paul Railway Co., 114 U. S. 615, 618, 5 Sup. Ct. 1125, 28 L. Ed. 224; Gilbert v. Erie R. Co., 97 Fed. 749, 38 C. C. A. 408 (C. C. A. 6); Chicago, M. & St. P. Ry. Co. v. Bennett, 181 Fed. at 802, 803, 104 C. C. A. 309 (C. C. A. 8). And certainly the duty of the railroad was not greater, nor that of Robbins less, because of the fact that the injury occurred at the entrance to the bridge. If, then, it be assumed that the testimony as to the reason for omitting to sound the bell or whistle was inadmissible, the error was harmless.

[10] Stress does not seem to be laid in the brief, as it was in oral argument, upon the claim that it was negligence in the railroad company simply to maintain this very narrow board walk-it is 72 feet long-for foot travel over the bridge; but, since the danger is manifest, it is plain that relief cannot be obtained in a case such as this, and especially as respects one who, like decedent, understood the situation perfectly. The judgment is affirmed.

CLARK V. JOHNSON et al.

In re OZARK LAND & LUMBER CO.

(Circuit Court of Appeals, Eighth Circuit. July 25, 1917.)

No. 4838.

1. BANKRUPTCY 52-COURTS OF BANKRUPTCY-EQUITABLE NATURE OF PRO

CEEDINGS.

Bankruptcy proceedings are in the nature of proceedings in equity, and bankruptcy courts administer the law according to the spirit of equity. 2. CORPORATIONS 243(1)-STOCKHOLDERS-LIABILITY OF INNOCENT PURCHASERS OF UNPAID STOCK.

Bankrupt, an Arkansas corporation, issued stock, which was delivered to the purchaser of its bonds, without other consideration. All of the stock was placed for 10 years in the hands of voting trustees, who issued certificates which recited that the holder at the end of 10 years was entitled to full-paid stock to the face value, and prior to that time to any dividends declared on the certificate. Claimants purchased certain of the bonds in the open market in New York, and received with them a proportionate amount in the voting trust certificates; they had no knowledge of the stock, nor the manner of its issuance. Held that, as bona fide purchasers of the bonds with the certificates, they did not become liable as subscribers for unpaid stock to assessment for the benefit of creditors of the bankrupt.

Appeal from the District Court of the United States for the Western District of Arkansas; F. A. Youmans, Judge.

In the matter of the Ozark Land & Lumber Company, bankrupt. From an order allowing the claims of James D. Johnson and others, bondholders, Perry N. Clark, trustee, appeals. Affirmed.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

F. M. Etheridge, of Dallas, Tex. (W. N. Ivie and Duty & Duty, all of Rogers, Ark., and Etheridge, McCormick & Bromberg, of Dallas, Tex., on the brief), for appellant.

Henry L. Fitzhugh, of Ft. Smith, Ark. (Joseph M. Hill and John Brizzolara, both of Ft. Smith, Ark., on the brief), for appellees.

Before SANBORN, CARLAND, and STONE, Circuit Judges.

CARLAND, Circuit Judge. This is an appeal from an order of the District Court allowing claims of appellees against the estate of the Ozark Land & Lumber Company, a bankrupt. The facts which condition the validity of the claims are as follows:

The Ozark Land & Lumber Company was incorporated under the general law of the state of Arkansas, November 26, 1910, with a capitalization of $150,000, divided into 6,000 shares, of the par value. of $25 each. It was represented in the articles of incorporation that the following named persons had subscribed for shares of stock in said corporation as follows: George D. Locke, 4,000 shares; J. W. Walker, 200 shares; J. S. McCleod, 200 shares; R. C. Hobbs, 1,400 shares; and W. W. Moody, 200 shares. None of these subscribers. ever paid anything on his stock subscription. The certificate of incorporation recited that the stock "is to be paid by installments, in such proportion and at such time as the directors shall think proper." On November 29, 1910, W. R. Felker sold to the corporation 12,152.37 acres of land in the counties of Benton, Madison, and Washington, Ark., for $150,000 and 5,950 shares of its capital stock. As payment therefor the corporation gave Felker six notes, for $25,000 each, and secured the payment of the same by a mortgage on the land, and thereafter, on May 18, 1912, issued certificates of stock to Felker, amounting to 5,950 shares. The other 50 shares were disposed of by donating 10 shares to five individuals to qualify them as directors. In the latter part of 1911, or the early part of 1912, Felker and George D. Locke, president of the corporation, entered into negotiations with Smith & Potter, dealers in investment securities in New York City, which resulted in an agreement that the corporation should increase its capital stock from $150,000 to $300,000; that it should issue 150 bonds, of $1,000 each, secured by a first deed of trust to the Mississippi Valley Trust Company of St. Louis, Mo., upon all of the land purchased by the corporation from Felker; that Smith & Potter should buy the bonds at 90 cents on the dollar for those delivered by the Trust Company prior to March 1, 1912, and 90 cents with accrued interest for those delivered subsequent to said date; that the corporation should donate to Smith & Potter the increased capital stock of $150,000, and in addition thereto Felker should donate to them 50 shares of the original issue of stock, the proceeds arising from the sale of the bonds to be received and accepted by Felker in discharge of the notes given for the purchase price of the land.

This agreement was carried out. The corporation amended its charter, increasing its capital stock from $150,000 to $300,000. The stockholders and directors voted the increase, and resolved that for

the purpose of facilitating the sale of the bonds the $150,000 increased capital stock be distributed among the subscribers and purchasers of said bonds as they were paid for, allotting to each subscriber 40 shares of stock, of the par value of $25 each, to each bond, which were of the denomination of $1,000 each. At the stockholders' meeting Felker voted 5,950 shares and the other five stockholders 10 shares each.

On January 25, 1912, a deed of trust to the Trust Company, as trustee, was executed, and the 150 bonds were issued, but dated January 2, 1912. They were deposited with the Trust Company, which upon the order of George D. Locke, president of the corporation, transmitted them to the Standard Trust Company of New York, to be delivered to Smith & Potter upon payment by them therefor. Smith & Potter paid for the bonds at various dates between February 6 and July 2, 1912. The proceeds of the bonds were appropriated by Felker, in consideration of which he canceled the six $25,000 notes and his mortgage to secure the same. The bonus stock was not issued at the time of the execution of the bonds or the deed of trust to secure the same; it being agreed apparently that the bonus stock was not to be issued until the bonds were paid for. The bonus stock was issued in May, 1912, to Smith & Potter. Prior to the issuance of the bonus stock to Smith & Potter, the stockholders of the corporation, including Smith & Potter, entered into a "voting trust agreement," dated May 1, 1912. By virtue of this trust agreement the stockholders placed their stock irrevocably for a period of 10 years in the hands of voting trustees.

It was further provided in the trust agreement that the stock held by any stockholder who should become a party to the trust agreement should be deposited with the Trust Company hereinbefore mentioned, and that the stockholders should receive in exchange therefor voting trust certificates to be signed by the voting trustees and the Trust Company; that all shares of stock should be transferred upon the books of the corporation to the voting trustees. Pursuant to this agreement Smith & Potter with other stockholders transferred the stock held by them to the voting trustees and received therefor voting trust certificates corresponding with the amount of stock transferred.

It is claimed that the transfer of stock was made by canceling the original certificates of stock and issuing new certificates direct to the voting trustees. The voting trust certificates recited on their face that on the 1st day of May, 1922, the holder of any certificate would be entitled to receive a certificate or certificates of stock for the number of shares of fully paid stock in the corporation called for by the trust certificate or the proceeds thereof if the same had been sold as provided in the voting trust agreement dated May 1, 1912, and that in the meantime each holder should receive payment equal to the dividends, if any, declared by the voting trustees upon a like number of shares standing in their names, and that until the actual delivery or sale of such certificates of stock the voting trustees should possess and should be entitled to exercise all rights of every name and nature, including